UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INDAH WILSON,

Plaintiff, Civil Action No. 16-2241 (BAH) v. Chief Judge Beryl A. Howell ON THE RISE ENTERPRISES, LLC and OJI A. ABBOTT,

Defendants.

MEMORANDUM AND ORDER

The plaintiff in this case, Indah Wilson, has stopped participating in this litigation. Her

absence supplies the basis for three now-pending motions and for their resolution. First, the two

remaining defendants, On the Rise Enterprises, LLC (“OTR”) and Oji Abbott, have moved,

consistent with Federal Rule of Civil Procedure 37, to sanction the plaintiff for violating her

discovery obligations. See Defs.’ Rule 37 Motion Disc. Sanctions (“Defs.’ Mot.”), ECF No. 34.

Second and third, the plaintiff’s two attorneys have moved to withdraw their appearance. See

Mariusz Kurzyna Mot. Withdraw Appearance (“Kurzyna Mot.”), ECF No. 33; Brent Ahalt Mot.

Withdraw Appearance (“Ahalt Mot.”), ECF No. 35. Although neither motion to withdraw gives

a reason for the motion, the plaintiff’s inattentiveness to this case has been a persistent problem

since at least July 2018, and previously has been cited for why at least one of the plaintiff’s

attorneys considered withdrawing from the case. See Discovery Conf. Rough Tr. (Nov. 20,

2018) at 6:8–18 (plaintiff’s counsel explaining that “I was unable to get a hold of [the plaintiff]

for a significant amount of time. . . . And, frankly, I was ready to give up and withdraw from

this representation”); see also Sealed Decl. of Mariusz Kurzyna (“Kurzyna Decl.”), ECF No. 32

1 (explaining difficulty communicating with the plaintiff).1 Indeed, because the plaintiff neglected

this case for so long, no discovery was completed by the initial discovery deadline. Discovery

Conf. Rough Tr. (Nov. 20, 2018) at 3:17–18.

For the reasons described below, the defendants’ motion for sanctions is granted in part

and denied in part. The defendants’ motion is granted insofar as it seeks dismissal of this action

and denied insofar as it requests that the plaintiff be held in contempt and that the defendants’

costs incurred preparing for the plaintiff’s deposition be reimbursed. Additionally, each

attorney’s motion to withdraw is denied as moot because this case is being dismissed.

BACKGROUND

On November 11, 2016, the plaintiff instituted an action against OTR, Abbott, and

Dominique Brooks, in which the plaintiff alleged that she had worked for over ten years at the

restaurant Oohhs & Aahhs without ever being paid. Compl. ¶¶ 1, 7, 15, ECF No. 1. Each

defendant moved to dismiss the complaint. See OTR & Abbott’s Mot. Dismiss, ECF No. 8;

Brooks’s Mot. Dismiss, ECF No. 16. After re-assignment to the undersigned judge, see

Reassignment of Civil Case, ECF No. 19, OTR and Abbott’s joint motion to dismiss was granted

in part and denied in part, while Brooks’s motion was granted, see Order (Mar. 31, 2018), ECF

No. 21. The plaintiff was permitted to proceed against OTR and Abbott with three of her

claims—two under the Fair Labor Standards Act,

et seq., and one under the

District of Columbia’s Wage Payment Act,

et seq., see Order (Mar. 31,

2018); Compl. ¶¶ 25–44.

1 This Memorandum and Order does not reference any information that necessitated filing this declaration under seal. 2 After ruling on the motions to dismiss, the Court set a schedule for further proceedings.

Min. Order (Apr. 25, 2018). That schedule gave the plaintiff until May 24, 2018 to amend her

complaint and the parties until November 20, 2018 to complete discovery.

By the first

deadline, the plaintiff amended her complaint, adding a claim under the District of Columbia’s

Minimum Wage Act,

et seq. See Am. Compl. ¶¶ 33–42, ECF No. 27. The

two remaining defendants filed timely answers. See OTR Answer, ECF No. 28; Abbott Answer,

ECF No. 29.

Three days before the discovery deadline, the plaintiff sought a six-month extension of

that deadline, disclosing that she “has been incapacitated by circumstances of an extreme

personal nature, which have prevented her from participating in discovery and made her

unavailable for deposition.” See Pl.’s Mot. Extension at 1, ECF No. 30. The plaintiff authorized

her attorney to share information about the hardship on the condition of confidentiality.

The

plaintiff’s counsel explained that he had been slow seeking an extension because he “learned the

full extent of Plaintiff’s hardship only recently.”

The Court directed the defendants to respond to the plaintiff’s motion and the plaintiff to

file under seal the reason for her incapacitation. Min. Order (Nov. 19, 2018). The defendants’

response opposed the extension until the plaintiff provided more information. Defs.’ Opp’n Pl.’s

Mot. Extension (“Defs.’ Extension Opp’n”) at 1, ECF No. 31. The defendants added that they

had been trying for four months to schedule the plaintiff’s deposition but were unable to do so

because the plaintiff’s counsel had been unresponsive. Id.; see also Defs.’ Extension Opp’n, Ex.

A, ECF No. 31-1 (attaching counsels’ emails about scheduling the plaintiff’s deposition).

Indeed, the defendants had noticed the plaintiff’s deposition for October 25, 2018, and sought

confirmation of the plaintiff’s availability multiple times, only to have the plaintiff’s counsel, on

3 the morning the deposition was scheduled, report the plaintiff’s unavailability. Defs.’ Extension

Opp’n, Ex. A at 1–2; see also Defs.’ Extension Opp’n, Ex. B, ECF No. 31-2 (attaching counsels’

emails confirming cancellation of deposition).

On November 20, 2018, after the plaintiff’s counsel filed a sealed declaration about the

plaintiff’s hardship, see Kurzyna Decl., the court held a discovery conference, see Min. Entry

(Nov. 20, 2018). At the conference, the plaintiff was given a two-month extension of the

discovery deadline, until January 22, 2019. Discovery Conf. Rough Tr. (Nov. 20, 2018) at

12:13–25; see also Min. Order (Nov. 20, 2018). The Court further ordered “that, if noticed, the

plaintiff shall appear for her deposition within the period scheduled for discovery.”

Later on the day of the discovery conference, the parties started coordinating a date for

the plaintiff’s deposition. Defs.’ Mot. at 2; see also Defs.’ Mot., Ex. A at 3, ECF No. 34-1

(attaching counsels’ emails about scheduling the plaintiff’s deposition). The defendants’ counsel

offered several dates and asked that, by November 26, 2018, the plaintiff’s counsel identify a

suitable date. Defs.’ Mot., Ex. A at 2–3. The plaintiff’s counsel did not respond, so the

defendants’ counsel noticed the plaintiff’s deposition for December 19, 2018.

. That

date, however, did not work for the plaintiff.

Although the plaintiff’s counsel proposed

January 15, 2019 as an alternative, the defendants’ counsel responded that her “client does not

wish to wait until 7 days before discovery closes to take this deposition” and that she would

“need ample time to timely serve other discovery requests based on [the plaintiff’s] deposition

testimony.”

The defendants’ counsel then offered December 17 and 18, 2018.

In

response to that offer, the plaintiff’s counsel said that he was “trying to figure out when it would

be possible for [the plaintiff] to travel from New York where she has child custody during the

week.”

At last, on November 27, 2018, the defendants’ counsel re-noticed the plaintiff’s

4 deposition for December 18, 2018 and said that she would keep that date “unless there is a good

reason not to.”

.

The next day, the plaintiff served written discovery requests to the defendants. See Pl.’s

Opp’n Defs.’ Mot. Disc. Sanctions (“Pl.’s Opp’n”) at 4 n.2, ECF No. 36; Joint Status Report

(“JSR”) at 1, ECF No. 37. Those requests had a December 28, 2018 return date, but the

defendants never complied. JSR at 1.

On December 14, 2018, the defendants’ counsel alerted the plaintiff’s counsel that “[the

plaintiff] has confirmed to [the defendant] that she has no plans to attend her deposition at any

time” but added that the plaintiff had not given “official notification that she is not attending.”

Defs.’ Mot., Ex. B, ECF No. 34-2 (attaching counsels’ emails confirming cancellation of

deposition). Three days later, and a day before the scheduled deposition, the plaintiff’s counsel

responded that he is “unable to confirm [the plaintiff’s] attendance tomorrow.”

An hour

later, the plaintiff’s counsel confirmed that the plaintiff would not attend.

On the same day that Kurzyna, the plaintiff’s attorney who had been communicating

about the plaintiff’s deposition, confirmed the plaintiff’s unavailability, he moved to withdraw

his appearance. See Kurzyna Mot. The next day—when the plaintiff’s deposition had been

scheduled—the defendants moved to sanction the plaintiff, asking that the case be dismissed, the

plaintiff be held in contempt, and that defense counsel’s expenses incurred preparing for the

plaintiff’s deposition be reimbursed. Defs.’ Mot. at 1. One day later, the plaintiff’s second

attorney filed his motion to withdraw. See Ahalt Mot. Although Kurzyna already had moved to

withdraw from the case, he ultimately responded on behalf of the plaintiff to the defendants’

motion for sanctions. See generally Pl.’s Opp’n.

5 Finally, the parties filed, on January 22, 2019, the day discovery concluded, a joint status

report. See generally JSR. In it, the parties wrote that the “Plaintiff has confirmed to Defendant

Abbott directly that she will not appear for her deposition.” JSR at 2.

The three motions are now ripe.

LEGAL STANDARD

Federal Rule of Civil Procedure 37 contemplates sanctions for a host of discovery

violations. Among them, the court in which the related action is pending may “dismiss[] the

action or proceeding in whole or in part” if “a party . . . fails to obey an order to provide or

permit discovery.” FED. R. CIV. P. 37(b)(2)(A)(v). Additionally, sanctions are appropriate if “a

party . . . fails, after being served with proper notice, to appear for that person’s deposition.”

FED. R. CIV. P. 37(d)(1)(A)(i). When a party fails to appear for a deposition, suitable sanctions

include “dismissing the action in whole or in part.” FED. R. CIV. P. 37(d)(3) (incorporating FED.

R. CIV. P. 37(b)(2)(A)(v)). In addition, “the court must require the party failing to act, the

attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees,

caused by the failure, unless the failure was substantially justified or other circumstances make

an award of expenses unjust.”

“District courts have considerable discretion in managing discovery . . . and possess

broad discretion to impose sanctions for discovery violations under Rule 37.” Parsi v.

Daioleslam,

(D.C. Cir. 2015) (internal quotations omitted); see also Giles v.

Transit Employees Fed. Credit Union,

(D.C. Cir. 2015) (“Under Rule 37, the

district court has broad discretion to respond, or not to respond, to alleged abuses of the

discovery process.” (internal quotations omitted)). “The central requirement of Rule 37 is that

6 ‘any sanction must be just.’” Bonds v. District of Columbia,

(D.C. Cir. 1996)

(quoting Insurance Corp. v. Compagnie des Bauxites de Guinée,

(1982)).

ANALYSIS

The defendants request three sanctions as a consequence of the plaintiff failing to appear

for her deposition: dismissal, contempt, and attorneys’ fees. Those three are addressed in order.

A. Dismissal

First, the defendants argue that the plaintiff’s non-compliance warrants dismissal. Defs.’

Mot. at 4–5. While Rule 37 suggests that dismissal of a case might be an appropriate sanction

for failing to cooperate with discovery or with a court order, the D.C. Circuit has instructed that

“‘dismissal is a sanction of last resort to be applied only after less dire alternatives have been

explored without success’ or would obviously prove futile.” Bonds,

(quoting

Shea v. Donohoe Constr. Co.,

(D.C. Cir. 1986)). That principle has been

distilled into “three basic justifications that support the use of dismissal . . . as a sanction for

misconduct.” Webb v. District of Columbia,

(D.C. Cir. 1998); see also

Washington Metro. Area Transit Comm’n v. Reliable Limousine Serv., LLC,

(D.C.

Cir. 2015) (restating the Webb justifications). First, dismissal may be proper if the misbehavior

“has severely hampered the other party’s ability to present his case—in other words, that the

other party ‘has been so prejudiced by the misconduct that it would be unfair to require him to

proceed further in the case.’”

(quoting Shea,

). Second, dismissal may be

proper if the “misconduct has put ‘an intolerable burden on a district court by requiring the court

to modify its own docket and operations in order to accommodate the delay.’”

(quoting Shea,

). Third, dismissal may be proper if the misconduct is “disrespectful to the

court” and must be deterred.

7 The plaintiff disputes her “failure to cooperate with discovery,” Pl.’s Opp’n at 2, and

contends that the “Defendants have not demonstrated actual prejudice,” id. at 3. For both points,

the thrust of the plaintiff’s argument is that because, at the time of the plaintiff’s response, the

discovery deadline had not yet passed, the plaintiff still had time to cooperate and the defendants

had not suffered any prejudice. Id. at 3–4.

With discovery now having concluded, the plaintiff’s argument no longer holds and

dismissal is an appropriate sanction in this case. The plaintiff failed to appear for a properly

noticed deposition, which Rule 37(d)(3) suggests may alone warrant dismissal. Compounding

matters, the plaintiff had been specifically ordered to attend her deposition if noticed. See Min.

Order (Nov. 20, 2018). That too, under Rule 37(b)(2)(A)(v), may be an independent basis for

dismissal.

As for the Webb justifications, dismissal is apt here because forcing the defendants to

defend against the instant lawsuit without the benefit of the plaintiff’s deposition would be

prejudicial. Cf. United States Sec. & Exch. Comm’n v. China Infrastructure Inv. Corp.,

(D.D.C. 2016) (“The defendants’ failure to respond to the SEC’s requests for

interrogatories and production of documents, served on July 13, 2015, and ultimately due on

November 16, 2015, has hampered the SEC’s ability to present its case on the merits.”). As the

defendants correctly point out, because the plaintiff has not been deposed, “Defendants cannot

understand and evaluate Plaintiff’s claims, and cannot formulate their defenses.” Defs.’ Mot. at

5. Turning to the second Webb justification, this case has been on the docket since 2016, and the

Order resolving the motions to dismiss was issued 10 months ago. Order (Mar. 31, 2018). Since

that time, the plaintiff’s absence has brought this case to a halt. Continuing to the third Webb

justification, the plaintiff specifically was ordered to appear for her deposition if sent a notice.

8 Min. Order (Nov. 20, 2018). Despite that Order, the plaintiff failed to appear. Violations of

court orders must be deterred.

Finally, no lesser sanction is more appropriate in this case. The parties’ recent status

report confirmed that “the Plaintiff has confirmed to Defendant Abbott directly that she will not

appear for her deposition,” JSR at 2, demonstrating the futility of allowing this case to proceed.

On this set of facts, dismissal, although extreme, is appropriate.

B. Contempt

Ostensibly, the defendants’ request that the plaintiff be held in contempt, which was

made prior to the end of discovery, was aimed at forcing the plaintiff’s compliance with the

notice of deposition. Now that this action is being dismissed, contempt is unnecessary.

C. Attorney’s Fees

Finally, if a party fails to attend her own deposition, “the court must require the party

failing to act, the attorney advising that party, or both to pay the reasonable expenses, including

attorney’s fees, caused by the failure, unless the failure was substantially justified or other

circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(d)(3). Although Rule 37

uses “must,” the Rules do “not significantly narrow the discretion of the court.” FED. R. CIV. P.

37 advisory committee’s notes to 1970 amendments (describing effect of including mandatory

language to a section of Rule 37 that is nearly identical to Rule 37(d)(3)); see also Jones v.

Dufek,

(D.C. Cir. 2016) (quoting advisory committee notes as evidence that

Rule 37’s mandatory language does not foreclose discretion).

The defendants argue that the plaintiff and/or her counsel should pay the defendants’

costs spent preparing for the plaintiff’s deposition because her failure to appear was unjustified.

Defs.’ Mot at 1, 5. Yet, given that the plaintiff’s absence from this case, as explained in a sealed

9 declaration, is due to a significant personal trauma, see generally Kurzyna Decl., imposing

attorneys’ fees as an additional sanction to dismissal would be excessive. See Protopapas v.

EMCOR Gov’t Servs., Inc.,

(D.D.C. 2017) (“Though plaintiff’s counsel

did delay significantly before producing any documents to the defendant, that delay was

attributable to plaintiff’s counsel dealing with ‘the illness and subsequent death’ of a close family

member. . . . While the Court does not minimize the inconvenience caused to both the Court and

the defendant by counsel’s dilatory conduct, imposing attorneys’ fees in these circumstances is

not warranted.”). Moreover, the defendants also appear to have neglected discovery

responsibilities, failing to provide answers to interrogatories. See Pl.’s Opp’n at 4 n.2; JSR at 1.

Finally, Defendant Abbott has been communicating directly with the plaintiff during her

absence. See Defs.’ Mot., Ex. B; Defs.’ Extension Opp’n, Ex. A at 2; JSR at 2. Uncertainty as

to whether those contacts contributed to the plaintiff’s unwillingness to participate weigh against

defraying the defendants’ expenses preparing for the plaintiff’s deposition.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that the Defendants’ Rule 37 Motion for Discovery Sanctions, ECF No. 34,

is GRANTED IN PART and DENIED IN PART; and it is further

ORDERED that this case is dismissed; and it is further

ORDERED that Mariusz Karzyna’s Motion for Leave to Withdraw Appearance, ECF

No. 33, and Brent Ahalt’s Motion to Withdraw Appearance, ECF No. 35, are DENIED as moot.

The Clerk of the Court shall close this case.

SO ORDERED.

Date: January 30, 2019

10 This is a final and appealable order.

__________________ BERYL A. HOWELL Chief Judge

11